EEOC Proposes Expansive Regulations for Pregnant Workers Fairness Act

The EEOC's proposed regulations to implement the protections of the Pregnant Workers Fairness Act ("PWFA") are published and open for comment until October 10, 2023. The EEOC takes a very broad view of the coverage of the PWFA and the rights of covered employees.  

The PWFA applies to "pregnancy, childbirth, or related medical conditions" but under the proposed rule PWFA protections would apply to current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, having or choosing not to have an abortion, or pre-existing medical conditions that are affected by pregnancy. Employees with normal pregnancies can seek accommodations without any showing of severity or disability. 

The proposed regulations contain numerous examples of accommodations that the EEOC regards as presumptively reasonable, such as frequent breaks, sitting or standing to work, schedule changes, part-time work, paid and unpaid leave, telework, temporary transfers, reserved parking, light duty, assistance with lifting, making existing facilities accessible or modifying the work environment, job restructuring, temporarily suspending one or more essential functions, acquiring or modifying appropriate or helpful equipment, uniforms or devices, intermittent leave for depression, and modifying policies.

The proposed regulations modify the test for qualified employees who can perform the essential functions of their job with or without accommodation to include employees who cannot perform one or more essential job functions provided that the inability is "temporary," the essential function can be performed "in the near future" (up to 40 weeks) and the lack of performance can be accommodated.

The proposed regulations also provide that "unnecessary delay" in responding to accommodation requests is a violation of the PWFA.